Gaulkin, Lewis and Kolovsky. The opinion of the court was delivered by Kolovsky, J.A.D.
On August 3, 1964 a truck and trailer owned by plaintiff Humble Oil & Refining Co. (Humble) and automobiles owned and driven by defendants Church and Gale collided. Eileen A. Keiffer, a passenger in the Church automobile, was killed.
In late 1964 or early 1965 a negligence action was instituted under the Death Act against Church, Gale, plaintiff herein and its driver to recover damages for Mrs. Keiffer's death. The only cross-claims asserted by defendants in that action were claims for contribution under the Joint Tortfeasors Contribution Law (N.J.S. 2 A:53 A -1 et seq.).
The Keiffer action was settled and on June 13, 1968 a consent judgment for $25,000 without costs was entered in favor of Mrs. Keiffer's administrator ad prosequendum against Church, plaintiff herein and its driver. The complaint was dismissed as to Gale.
On October 13, 1966 plaintiff instituted the present negligence action against Church and Gale to recover for damage to its truck and trailer. Church moved to dismiss the complaint for "failure to state a claim upon which relief can be granted." In fact, the motion was dealt with as a motion for summary judgment, R.R. 4:12-2, the parties and the court relying on matters outside the pleadings, viz., the prior Keiffer action, its settlement and the entry of the consent judgment therein. Church's motion was granted. Plaintiff appeals.
Initially we note that the order appealed from is not a final judgment from which an appeal lies of right. The action still pends undetermined against defendant Gale. However, under the circumstances and since the parties have
argued the appeal on the merits, we deem it advisable to grant plaintiff leave to appeal nunc pro tunc and to reach the merits of the controversy.
The trial court gave two reasons for its ruling:
"1. The consent judgment entered in the [Keiffer action] * * * was an admission of negligence and precluded Plaintiff herein from now taking the position it was free of negligence. Public Service Electric & Gas Co., Inc. v. Waldroup, 38 N.J. Super. 419 (App. Div. 1955).
2. The accident which forms the basis of this suit was in litigation in the prior suit and the Plaintiff herein may not now seek to do what it could have done in the prior suit. Falcone v. Middlesex County Medical Society, 87 N.J. Super. 486, 490, 491 (App. Div. 1965)."
We find neither reason valid and reverse.
Defense of the Keiffer action was furnished Humble and its driver by Humble's insurance carrier, as called for by its liability insurance policy. The policy provided, inter alia, that the insurance company might "make such investigation, negotiation and settlement of any claim or suit as it deems expedient," and that the insured should ...